How to settle a criminal case
Lawyers in dispute (c. 1770) probably Italian, Gift of Irwin Untermyer, 1964, to the Metropolitan Museum of Art.
Here are some legal methods to “settle” a criminal matter. I am focusing more on cases that have been charged in court but some material here applies to cases that have not yet been charged in court.
This topic we need to approach with tact and care because sometimes many people will bet their personal, professional and family reputation on sometimes ethically and legally questionable methods. I will do my best to present what I think are legally acceptable methods. But none of them are risk free. A criminal case, whether at investigation stage or at court or a combination of both, always entails an amount of risk and fear on you, the person under investigation or your loved ones.
There are 2 parts to this writing, Part A and Part B. Do not read Part A without reading Part B.
And always consult a legal practitioner for legal advice concerning your case. Be mindful of advice (and “advisors”) who are conflicted or otherwise have an interest in your case or how you conduct yourself in a case, even if their intentions appear to be good.
There are a lot of illegal, immoral, risky, dubious ideas sold to you by all kinds of persons out there about how to get a criminal case “settled”. Do not attempt any of those methods, even as a backup or plan C or plan D.
WHAT IS MEANT BY “SETTLING” A CRIMINAL CASE?
For cases under investigation, getting a direction for No Further Action (“NFA”) by the DPP. No charges filed. Case closed. There are ways for it to be reopened; I won’t discuss it here.
For cases that have been brought to court (i.e. criminal charges have been filed, it means the charges are withdrawn (“pertuduhan digugurkan” or “pertuduhan ditarik balik”). Because the charges were filed in court, it is the Court that must dispose it. So the Court will make an order for Discharge Not Amounting to an Acquittal (DNAA; Dilepaskan Tanpa Dibebaskan) or an order that the accused is Acquitted & Discharged (A&D; Dilepaskan dan Dibebaskan).
When either one happens, we can say that the case has been concluded, settled. You can arrive at these results after full investigation or full trial, but the purpose of this writing is to respond to the urgent, anxious plea of members the public who inquire how to settle cases without going through all that.
When the case has been concluded or settled, you are free. If you were charged, you get your bail money and your freedom back. The MACC has the power to obtain your bail money up front even if you are not charged. So you get that back too (you should ask for it back if you are charged, likewise).
CAN A CASE THAT HAS BEEN CLOSED, CONCLUDED OR SETTLED BE REOPENED, RECHARGED, OR RETRIED?
Yes, but it depends on the procedure that lead you to such result. Different procedures produce different outcomes, and different outcomes have different implications. For example, cases that were ordered DNAA may be charged again. A case that was decided after full trial would produce a decision — this decision can be overturned on appeal to a higher court. If you really want finality and security, go for the tried and tested, established methods (full trial, plead guilty, Representasi, and the statutory plea bargaining, which locks in the parties).
With respect, I found that some of these other methods of settlement, even the valid ones, do not always produce a permanent, lasting effect on paper; even if in practice the effect appear to be permanent.
PART A
(1) “Tarik balik repot”. The idea is the Complainant (Pengadu) who lodged the police report will withdraw the police report. As I have written elsewhere, you can never actually withdraw a police report. The first report will forever be in the police’s record (if not mistaken it is called the Police Reporting System, PRS). What I mean is, the Complainant informs the authorities that they wish to discontinue the matter or that they will no longer pursue the matter because it has been settled or for some other reason.
The method for informing the authorities takes many possible forms. The Complainant can lodge a new police report (with reference to the earlier one), or write a letter to the investigating authority or the Attorney General’s Chambers (AGC) (for cases that have gone to court — charges filed). Lodging a police report seems to be the popular way and from my own interactions with various situations and cases, it is the preferred method, even as an Annexe to the aforesaid letter. In the Penang case SUHANI MAT DAUD v PP, it was reported that the appellant’s representation to the AGC was even supported by letters from the Complainant! But it did not work. She lost her case all the way to the Court of Appeal and lost her job as a conveyancing lawyer — this case involved money held in her firm’s client’s account. From my perspective, people make police reports for 101 reasons, even for reasons that need not be reported to the police at all. But laypersons are not expected to know the difference between one type of case (criminal-oriented) versus another (civil-oriented) or yet another (generic covering reports, laporan orang hilang, repot hilang IC, repot wallet tercicir, repot kemalangan jalanraya, repot jiran buat bising, repot jiran buang sampan depan rumah kita, and myriad others). At the same time, occasionally police will just RTM a case which has criminal element — but there is check and balance because the Magistrate will examine the Complainant on point.
BE VERY CAREFUL about asking a Complainant to withdraw their report. Get legal advice on this. There are real risks and you should not proceed without the benefit of advice and without preparation/ consideration even if you think you are right. And even if you think the Complainant made a false report against you. Consider these three points:
Firstly, the DPP is not obliged to drop the charges or NFA the investigation just because the Complainant has tarik balik report. It could be for public policy, or that the case had “gone viral”, it could be because the victim is a different person from the Complainant, it could be because the “rakaman percakapan lanjut” by the IO reveals some other consideration that triggers the DPP.
Secondly, depending on how it is done and the content of communication (if any) it can be seen as tampering with witnesses. This is an offence and if you are out on bail, it can be a breach of bail terms, with attendant consequences. You can be charged for it too.
Third, again depending on the content, agencies like the police or Malaysian Anti-Corruption Commission can take action for a bribery-related offence. Please see the case ROSLAN BIN YAHAYA v PP where a former district officer was charged for (attempting to) bribe a complainant to withdraw her police report, for a price of RM30,000. Here the complainant actually trapped the appellant.
Please take note, if you try to settle your case through middlemen who “kenal orang dalam”, you are also playing with fire. Do things the lawful and proper way please, it is for your own good. Just because some middlemen (may have) been undetected or gotten away with such work in the past does not mean they can do so indefinitely — and without dragging you into it. A casual check with google search would show that MACC has taken action against such middlemen and their clients.
(2) Letter of Representation. Unlike the above, this one is initiated by the person who has been charged in court for a criminal offence. Lawyers have written letters even while the investigation is ongoing, but there is a different slant when it is done at such stage. I am focusing on the post-charge Representasi. This is almost always done by a defence counsel. However, it can be done by the accused themselves — I have seen some repeat offenders write noteworthy representations from prison. There was a story that one of my former accused persons had assisted other prisoners to write their letters.
A “Rep” as it is sometimes called, provides explanation and insight to assist the DPP when reviewing the charge. Experienced DPPs know that the IP are based on the findings of the IO only and occasionally by meticulous DPPs who order further investigation. However they also know that some secrets of the case, that only emerge in cross-examination of prosecution witnesses, arrive at the first time in a Rep (not even in the accused’s statement). I know this because it has happened. Lawyers who just don’t like writing Reps or have had bad experience with Reps would more likely just say that Reps are a waste of time (and sometimes it may feel like one too). But a good lawyer will balance between what to disclose and what not to disclose and how much. They know that every legal opportunity should be undertaken for the best interest of the client, and not merely based on what the lawyer thinks is wasteful or not. Such lawyers should stop misguiding the public on what a Rep can and cannot do. A Rep is ultimately a piece of paper that assists the DPP when they prepare the briefing notes to advice their superiors, the real decision maker. Such superiors often read the IP themselves and make their own conclusions, or if their workload is too heavy they can if they so choose to, rely on the analysis by a subordinate. The decision making officer is often a senior officer who has had experience handling hundreds of cases and has a grasp of court politics and the policy of AGC — the “bigger picture”. Each case is decided on its facts but there is also the bigger picture. As you know, the AG makes decision based one evidence + law AND the public interest. I cannot disclose exactly what happens during a briefing session, but suffice to say that in well-run offices under good leadership, it is a rigorous and not a mechanical process. When I was a junior prosecutor, I had seen sharp bosses point out mistakes in my own briefings, sometimes with terse comments. This gives me the confidence that if the rep has sound basis and merits, it will be considered and there are check and balance mechanisms. Unfortunately for you and for the outsider, there is no way to know how much consideration was given, as the law does not require them to justify their decision.
(3) The Pre-Trial or Plea Bargaining Mechanism for Satisfactory Disposition of Case. I have written about this subject extensively in another writing.
My overall view is that the 3 items above can operate separately or in tandem. They are all legitimate and recognised, provided you stay within the rules.
PART B
You need to consider some factors, and your lawyer would have likewise advised you whether this is a case that CAN actually be settled (a settleable case, to play on the word).
Is it a public interest case?
Is there an actual victim? Some crimes are victimless.
Does the case involve loss of money only?
Are there parallel civil claims already in place?
These factors can assist you, your lawyer, the AGC in their decision.
How is the Process of Withdrawal Done?
Type A: No charge or charge withdrawn with order of DNAA or A&D by the Court. Instruct your lawyer to apply for A&D with the proper reasons.
Type B: DPP requests the Court the fix a date just for the Complainant to testify on withdrawing the case. So on that date, the DPP examines the Complainant and exhibits the laporan tarik balik kes. The Court may or may not examine the Complainant to be satisfied all was done voluntarily. I have heard of a case where a rape case proceeded all the way to Court of Appeal even though at trial the Complainant testified she wished to discontinue the matter as she had received jewellery and cash from the wife of the Accused.
Type C: Case not charged, and you don’t get official information that your were NFA either. It just goes silent indefinitely and no action is ever taken on you. Sometimes this happens, but it is indeed troublesome to have the accusation hanging over your head indefinitely. The reality is you can’t force the government to tell you what it wants to do with you (NFA or otherwise) in a criminal case except if you are charged.
Here’s a tip : If the loss is money only, make sure that you have recovered a certain amount of the money before agreeing to tarik balik repot. There is no such thing as pre-signed and post-dated tarik balik reports. You can try statutory declarations, a different item entirely for the right context.
It is doubtful whether any out of court agreement or settlement for a criminal matter is enforceable contractually. It could be unenforceable for being against public policy. If you want something “resembling” a contract, go for the “satisfactory disposition of case” provided under Sections 172C and D of the Criminal Procedure Code. Even the Judge signs the document — how much more secure can you get than that?
Last point - Don’t cheat your opposite party. Suppose you think you can run away with something once they withdrew their case against you. Don’t think they can’t re-lodge a new report. Whether the government machinery will fall for it this time is another matter though.